April 13, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
J.J. v Aviva Insurance Canada
Entitlement to Benefits: Disclosure of documents to tribunal; timing of disclosure; treatment for car accident injuries or subsequent heart attack; insurer’s examination; IE
Date of Decision: March 9, 2017
Heard Before: Adjudicator Jeanie Theoharis
J.J. was involved in two car accidents. The first accident was on February 7, 2014, and the second on March 21, 2014. On August 10, 2014, J.J. suffered a heart attack.
The treatment plan in question is dated December 4, 2015, and was completed by Dr. JG, chiropractor who recommends various goods and services to assist J.J. reduce his pain, and increase both his range of motion and strength. The items noted were a TENS unit, 2 aqua pillows, hot/cold gel pack and support activity instruction. On May 17, 2016, Aviva denied the treatment plan based on an IE report from Dr. M.G., general practitioner, dated May 11, 2016. Aviva asserts that the treatment plan is not reasonable and necessary and that the proposed treatment is to address J.J.’s injuries suffered from the heart attack, and not the car accident.
Aviva submits that J.J. did not comply with Rule 9 of the Licence Appeal Tribunal Rules of Practice and Procedure because he failed to disclose documents that he relies upon at least 10 days before the hearing.
The Arbitrator reviewed Aviva’s submission and Rule 9.2 of the Tribunal’s Rules and permitted the documents to be entered as evidence at the hearing on the basis that the Rule requires the disclosure of documents to be exchanged at least 10 days prior to the hearing, not 10 days prior to the service and filing of written submissions.
- Is J.J. entitled to receive a medical benefit for chiropractic services /assistive devices recommended by Dr. JG in a treatment plan dated December 4, 2015?
- Is J.J. entitled to interest for the overdue payment regarding the claimed benefit?
The Arbitrator reviewed the law and determined that an insurer, under to s. 14 of the Schedule, is liable to pay an insured person medical and rehabilitation benefits if the insured person has sustained an impairment as a result of an accident, and the benefits are reasonable and necessary expenses that have been incurred by or on behalf of the insured person as a result of the accident. The Arbitrator found that the treatment plan dated December 4, 2015, is reasonable and necessary.
The physical injuries and sequelae resulting from the car accident are noted on the treatment plan as including tension-type headaches, whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs, injury of muscle and tendon at neck level, sprain and strain of thoracic spine and lumbar spine, lumbar region radiculopathy, and unspecified chest pain. In addition to J.J.’s physical impairments, the treatment plan also indicates J.J.’s psychological impairments, including mixed anxiety and depressive disorder, nonorganic sleep disorders, and post-traumatic stress disorder.
The treatment plan indicates that J.J.’s impairments inhibit his ability to carry out the activities of his normal life. Dr. J.G. noted on the treatment plan that “due to the significance of J.J.’s injuries, he has extreme difficulty in pushing, pulling, bending, sitting for a period over 20 minutes, standing from the sitting position. Client finds it almost impossible to complete everyday tasks such as getting dressed and eating. Assistive devices are being recommended to help assist in the client’s recovery”.
Since the car accident, J.J. is unable to work a 60 hour full-time work week as he did before the accident, and now works in a modified capacity and about 20-30 hours per week. Both Dr. M.G.’s May 11, 2016, IE report, and Dr. J.G.’s Functional Abilities Evaluation report dated August 18, 2016, noted J.J.’s limited ability to work.
Dr. M.G., in his IE report dated May 11, 2016, observed J.J. had tenderness, limited range of motion and pain. Dr. M.G. diagnosed J.J. with having cervical strain, and headache associated to whiplash injury. He noted J.J. sustained an impairment as a result of the accident and presented with some “decreased sensation in the right upper extremity” and “with pain and muscular palpation and range of motion limitations, again due to pain.” Dr. M.G.’s findings are indicative of the injuries sustained by J.J..
Moreover, Dr. RH’s IE psychologist assessment dated January 29, 2015, indicates that as a result of the February 7, 2014, car accident J.J. had symptoms meeting the criteria for “post-concussion syndrome” and the “symptoms are consistent with a head injury and the sequelae of limitations due to pain (e.g., depressed mood) and driving anxiety.” Dr. RH indicated that J.J.’s impairments were exacerbated by the second car accident. Dr. RH’s findings are also indicative of J.J.’s injuries sustained as a result of the car accident.
The Arbitrator reviewed all the additional medical evidence and concluded that the type of treatment must be tailored to meet the rehabilitative goals of each individual, taking into account their impairments, and unique circumstances. In the present case, J.J., having suffered a heart attack, requires treatment that can assist in his recovery, but also coincides with his current heart condition. He continues to suffer from pain, and maintains limitations in his range of motion, but also has a heart condition. Goals of the treatment plan, as noted on the plan, are to reduce his pain, and increase his range of motion.
The Arbitrator also found that J.J. is entitled to interest as the medical benefit is payable. Interest will be payable on the applicable amount of benefits owed to J.J. to the date of this decision in accordance with the Schedule.